The MPEG-LA's Lock On Culture

jrepin writes in to recommend a piece by Eugenia from OSNews, which explores the depths of the MPEG-LA's lock on video. One part of the problem is that almost all video cameras, including ones that cost more than $12,000, declare in their manuals that they are for "personal use and non-commercial" purposes only. "We've all heard how the h.264 is rolled over on patents and royalties. Even with these facts, I kept supporting the best-performing 'delivery' codec in the market, which is h.264. 'Let the best win,' I kept thinking. But it wasn't until very recently when I was made aware that the problem is way deeper. No, my friends. It's not just a matter of just 'picking Theora' to export a video to Youtube and be clear of any litigation. MPEG-LA's trick runs way deeper!""

Comments

Kill the lawyers.

[h00manist]

Or just change the law. No more copyrights-patents.

Re:Kill the lawyers.

[Devout_IPUite]

5-10 year patents on physical gizmos might be okay. But the patent application process needs to not be willy nilly approval.

Re:Kill the lawyers.

[Anonymous Coward]

Ditto with copyright. When the United states was first formed as a free country copyright terms were essentially 28 years in length. In the 20th century these terms were increased substantially. Current terms are complicated but can easily be over 100 years in length. If copyright terms were rolled back to something reasonable such as 30 years then a lot of this so called illegal copying (downloading a Beatles song for example) would simply go away. Of course the recording industry wants to sell all this old music to me and my children. Think of a world where a large conglomerate owned the works of Shakespeare and/or Mozart. You'd have to pay their asking price to read or listen to those works. I find that scary and unfortunately that's the world our children will live in as they grow up in a culture of essentially perpetual copyright.

BTW: I don't agree with the subject line. Lawyers aren't the problem. Most of them just work for someone whose paying the money, just like the rest of us.

Re:Kill the lawyers.

[spmkk]

5-10 year patents on physical gizmos might be okay.

It often takes 2-4 years to bring an idea for a physical gizmo to market, depending on the gizmo's complexity. It then takes a further 2-3 years to gain market acceptance, if you're lucky.

So what you're saying is, if I invent a physical gizmo, patent it, and invest my time and money to develop and market it, my IP protection should expire just about the time the effort begins to come to fruition -- opening the door for anyone to compete with me on price, which they're able to do because they don't need to recoup the R&D and marketing investment?

What do you expect will become of most good, but R&D-intensive, ideas if we accept your proposal?

Re:Kill the lawyers.

[BKX]

You know, as an up-and-coming lawyer (not one yet, but will be), I find this "kill-the-lawyers" sentiment annoying, to say the least. The problem lies with the legislature, the people who write the laws, not the lawyers who use them or the judges who interpret them. Legislators are largely NOT lawyers, and of the few who are lawyers, most have never practiced. Usually the laws aren't even written by the legislators but by other people, often lobbyists (who are usually former legislators). You'll notice that almost none of the people involved in making these laws are experienced lawyers. They have no idea how to read them (and usually haven't). They don't understand how the laws they pass will interact with others. They don't know how to think through the laws to understand the consequences of their actions. It's horrible, but it's not the lawyers' faults. The lawyers are just doing their jobs - advocating for their clients. It's their clients that are assholes and legislators that are idiots.

Re:Kill the lawyers.

[Chowderbags]

No copyrights means nothing *but* Free Software. Copyleft only arose as a kind of copyright judo because it was the only workable way to do what was wanted within the system that was there. Don't learn to love the best solution in a bad situation more than the best actual solution.

Who reads the manual?

[Peter Simpson]

"declare in their manuals that they are for "personal use and non-commercial" purposes only."
You don't always do everything that the manual tells you to, do you? I'm pretty sure that thousands of people a day use these cameras for commercial purposes without any problem (I know we use them at work). And I'm also pretty sure the MPEG-LA doesn't want to see the issue end up in court, because they'd probably lose.

Re:Who reads the manual?

[Pharmboy]

That is all fine until you produce a video that actually makes you money, and they sue you for royalties because you used their codecs to do so. This would be above and beyond the price you paid for the products. And there isn't anything you can do about it, because it is "clearly stated in the license agreement".

Or worse yet, if they disagreed with your video for political reasons, they could go after you for that, claiming it is because you failed to license it.

Re:Who reads the manual?

[Bert64]

It's a bait and switch, they won't do anything right now because they want to get h.264 as widespread as possible.
Once people are well and truly locked in, thats when they will screw everyone... Expect them to come after all these thousands of people demanding huge royalty payments. They'd also probably win because their actions although morally questionable are still within the law.

Re:Who reads the manual?

[mikael_j]

I'd still like to see some examples of this that aren't in east texas, or even better, outside the land of lawsuits (AKA the USA).

Re:Who reads the manual?

[zero.kalvin]

I would like to see how they are going to enforce that. There is overlaying stuff here, You bought a camera, that camera is yours, you own it. Using to film your new episode of 2 girls 1 cup and sell it online is your right, and yours alone. That's like buying a car, and the manufacturer tells you, that you are not allowed to use to car to race, because the steering software is not licensed for racing. If anyone is liable it's the manufacturer of the camera, he has not right to enforce how you are going to use your hardware even if it was in the EULA, and if you do break the EULA as it is, it there ass's who is going to be prosecuted. "The Usual IANAL statement".

Re:Who reads the manual?

[bersl2]

And in a very screwy way, that's actually how the whole patent game is "supposed" to work, i.e., find some reasonable amount to charge for a license, then do it.

As with proprietary software and copyright, perfect enforcement of the law would be just as disastrous as not enforcing at all, so they only care if you're a big-enough fish, and if you're small and are going to get away with infringing, they'd rather you use their product (codecs covered by their patents) and increase the network effect than use somebody else's product (codecs not covered by their patents).

Re:Who reads the manual?

[DarkOx]

I agree it remains to be seen as to what degree this will or will not be enforceable. This is a sort of reverse tivoization though if it works. Sure we sold you the hardware and you have the right to do anything you want with it; never mind we control the software and the hardware is worse than useless with out it. I think if we are going to preserve the concepts of first sale, property ownership in general, and a host of other things we commonly understand copyright and patent protection for at the very least certain classes of software are going to have to go..

Re:Who reads the manual?

[Draek]

Outside the US there are no software patents, therefore h.264 can't have any patent over it, therefore MPEG-LA can't threaten anybody for anything.

The issue with h.264 has always been the US, and while I'd personally be happy to lock them out of the entire internet just for being a bunch of morons with an ass-backward legal system, companies would never stop trading with them so it'll never happen, and the more we interact with them the more we get screwed by their goddamned idiotic laws (in most of the world copyright lasts for 50 years, for instance, but try finding a book online before its US life+90 copyright expiration date).

Re:Who reads the manual?

[mfnickster]

And in a very screwy way, that's actually how the whole patent game is "supposed" to work, i.e., find some reasonable amount to charge for a license, then do it.

Yeah, but the difference is how it used to be that the manufacturer paid for a license, sold you the product (cost of license built-in), and you used it for whatever you wanted.

Nowadays, they want to control not just how the product is made and sold, but how it is USED. That's just plain too much power.

Re:Who reads the manual?

[mfnickster]

We can debate whether software should be patentable all day, but video codecs are a pretty clear example of a piece of software that are very expensive to develop and probably do need some kind of patent protection.

There's nothing wrong with reasonable patents on inventions, but the point is to allow the maker to profit from producing the invention itself - and they can license other manufacturers to make similar inventions based on the patented design.

The reason this is different is because they're treating it like selling a video recorded with their invention is the same as duplicating the invention itself. They're putting limitations on the product of the codec as though you were taking away part of their business by selling an equivalent codec. I'm sorry, but I can't see that as a legitimate use of patents.

Re:Who reads the manual?

[nicolas.kassis]

I really wish I hat mod points for you. This is exactly the issue I think. Why should distributing a video be the same a implementing the MPEG-LA codecs and be bound by patents? In the end only codec writters should be liable. This is as if using a patented wheel on your car required a license. Damn, car analogies suck.

Re:Who reads the manual?

[Raffaello]

Please mod parent up. The link points to the wikipedia article on Contracts of Adhesion.

In particular this quote is relevant to the discussion here:
If the term was outside of the reasonable expectations of the person who did not write the contract, and if the parties were contracting on an unequal basis, then it will not be enforceable.

So for example, if a video camera is sold as a "professional" model, then it is completely outside the reasonable expectations of the purchaser that it could not be used for commercial purposes, since "for commercial purposes" is the very definition of "professional."

So this restriction would be unenforceable against any end-user/purchaser who purchased the camera as a "professional" model.

Re:Who reads the manual?

[RAMMS EIN]

``Suffice it to say that h264 is a very sophisticated technology that is the product of many contributions by many people and companies over a long period of time. We can debate whether software should be patentable all day, but video codecs are a pretty clear example of a piece of software that are very expensive to develop and probably do need some kind of patent protection.''

I'm not so sure. I agree with you that a video codec like H.264 is a complex beast and that a lot of effort has gone into developing it, but does that make it a good idea to allow it to be patented? The same thing can be said about a lot of other software, and it seems to get developed just fine without patents - actually, many would argue it gets better the fewer patents there are. I can't think of any reason why the same wouldn't go for video codecs, and, indeed, several video codecs have been developed without the developers seeking to patent their inventions.

My personal point of view is that patents are problematic, both philosophically and practically. If we agree that we want to stimulate innovation, we should carefully evaluate what ways we have to accomplish that (current and also newly implementable). If patents turn out to really be the best possible way to stimulate innovation, I say let's stick with them. But the idea that something I think of may be covered by a patent, and that people are willing to assert those patents and sue me if I implement my idea, does not strike me as particularly conductive to innovation. Nor does the idea of having to grep the massive body of existing patents to check that my idea is not covered by any of them - especially if that means my costs go up if someone ends up bringing a successful claim against me after all.

Now, none of this means that I want to deny the creators of H.264 compensation for their efforts. I think H.264 is a great codec (it certainly seems to be one of the best codecs we have managed to come up with so far), and if they want people to pay for using it, I feel they should have that option. It is the fruit of their labor, after all. I just wonder if we can't come up with something better than the current patent system.

Re:Who reads the manual?

[StuartHankins]

Mod parent up. This is like a chainsaw manufacturer wanting a fee when you used a chainsaw to create art. The more I hear about their licensingpracticesthe less I like them. When I buy a camera I expect to be able the pictures to be used anywhere, anytime,for any reason without some bum coming out of the corner wanting a handout.Force the camera manufacturers to admit ON THE BOX that you're just purchasing the videocamera not the rights to use the results and see how quickly this gets straightened out.

Re:Who reads the manual?

[Artifakt]

The poster you are disagreeing with was trying desperately to find a loophole. It's the "What you said only applies in 99.9% of all cases, so I'm really right and you're really wrong" defense. Ooooh! Only in East Texas, where just about everybody in the industry files because they know what the judges will do. Ooooh! Only in the USA, like nobody in other countries is influenced by what happens in the USA.
    For the same reason, you were modded troll in one of the worst abuses of the mod system I have ever seen, and I'm sure somebody has enough points left to mod me the same way, and will. You were somewhat inaccurate, mind you, as there are lots of countries (particularly in western Europe), where copyright lasts as long as in the US. As I post this, mikael_i is oddly marked as a +2 troll as well. (He's wrong but he probably doesn't deserve that appellation, and it's obvious there has been a mod point battle here.).
     

Re:Who reads the manual?

[BenBoy]

Great. You made a hammer. It's a great hammer. I bought it. Doesn't mean you own my house, though. The problem here, as implied by the parent post, is that the payment structure here doesn't isn't just allowing the maker to profit from his/her invention, but to profit from others' inventions. It discourages innovation, rather than promoting it as patents are meant to.

Re:Who reads the manual?

[arose]

Read the article, this is about tire manufacturers saying that you can only use the tires you bought (even the ones that say "professional racing") for carting around your family. If you want to put your tires on your semi or F1 you have to negotiate with the patent holders.

Re:Who reads the manual?

[coppro]

This isn't some kind of EULA situation where a provision in the contract will be thrown out: the cameras are stated to be for non-commercial use because no one paid for a commercial license. Suing would be quick and dirty, and the user would be at fault.

No. There is no provision in the contract to buy a camera stating that it is for personal use only, unless it's clearly marked on the packaging. This means the license could only bind the user if the patents are valid. If they are found to be invalid, there is no consideration and so the license cannot bind the user to anything. If the patents are valid, the user might still be found not to be subject to the license (since they would have to agree to it, and most users aren't even aware of the license's existence - they could still be found to agree without knowledge if there was significant notices attached to the camera that most people would notice stating it could only be used if you agree to the license, but to my knowledge no camera is like that), but then they would be at fault for patent infringement, which generally does not require intent.

Re:Who reads the manual?

[sjames]

However, since you bought the device, the very idea that you don't have the right to do with it as you will (including making money) is perverse to say the least.

The obligatory car analogy. I buy a used car free and clear. It is now MY car. I decide to paint it yellow and let people hire me to give them a ride. Wouldn't it be absolutely perverse if Ford (or whoever) then came to me and said I must pay them an extra ten grand even though I already bought the car free and clear (and not even from them)? Furthermore, they expect a percentage of the fares. I bought it free and clear but effectively a third party jumped in years after they sold the car to the person I bought it from and claim that I am merely renting the car and never really owned it. Except if it breaks down suddenly it's my car again and they will have no part in paying to fix it. All that and I NEVER at any point had any contact with them at all until they showed up at my door with their hand out.

The common understanding when a product claims to be not for commercial use is that it is not designed to stand up to such heavy use and the warranty won't be valid. That's perfectly rational and quite a different thing.

Re:GIF shenanigans

[jonwil]

Anyone that comes up with a video codec that is as good as H.264 WILL get sued by MPEG-LA if they start using said codec in places where the use would require a payment to MPEG-LA if H.264 was used instead.

It doesn't matter whether the codec actually infringes on any MPEG-LA patents, anything that threatens their revenue stream will be sued by people who likely have more resources than whoever developed the codec. (and because the US patent system is so broken, even if you can prove you didnt violate a single MPEG-LA patent, the MPEG-LA will still be able to convince a judge in texas to force you to hand over big sums of cash)

Re:Kumbaya the lawyers.

[Bob_Who]

Or just change the law. No more copyrights-patents.

...and no more war! and no more hunger! and no more cable and cell phone bills, and TOTO too!

Re:Camera for non-commercial use only?

[91degrees]

You legally need explicit permission from the patent holders to use the CODEC for any purpose. The manufacturer made an agreement that unilaterally grants you non commercial rights but the rights are limited.

If you use it commercially the manufacturer doesn't give a damn, but the patent holders can sue you.

Realistically....

[DavidR1991]

...transcode from one format to another. The article claims you are "already liable" if you do this - but here's the rub, unless you announce the camera you made the film with + what it was originally encoded with, who the hell is going to find out?

Re:Realistically....

[Dachannien]

Besides that, I fail to see how you would be on the hook for royalties covering more than one recording - the one you made originally, before you transcoded into an unencumbered format. TFA's author seems to take it as a given that you would still owe for every sold copy of the transcoded recording just because the original recording was in an encumbered format.

Re:Realistically....

[Qzukk]

how you would be on the hook for royalties covering more than one recording

Because companies think they are entitled to a cut of any revenue they "helped" you make, whether they are ISPs thinking they deserve a cut of Google's cash because they deigned to grant their subscribers access to Google's website, musicians thinking they deserve a cut of a cafe's cash because a radio was playing in the back, or video encoders who think they deserve a cut of a movie's revenue.

I wonder how many of these people who feel they deserve this entitlement also think that guy who invented the CD laser diode and sued his company for a share of the cash was also entitled to it.

civil disobedience

[zogger]

Some times to get laws and attitudes changed, mass civil disobedience comes into play. Some laws get on the books that are just so freaking lame, stupid and unfair that they invite mass disobedience. An example would be alcohol prohibition, where so many people disobeyed the law willingly that eventually it was changed. Another example would be racial discrimination. Mass marches and protests and willingly breaking the law obviously and in public, inviting arrest or worse, eventually worked to a large degree.

This is a situation where something like a mass "commercial photoshoot" might work. Thousands of camera owners all get together in a planned protest, video each other, exchange copies of the videos with each other for one dollar, with a big "neener, neener, do your worse" pronouncement. Lather, rinse, repeat. Keep doing it until these software patents are eliminated as just being too stupid and unfair and harmful. They certainly are not advancing the useful arts and sciences, so they fail on that critical aspect of the law.

I mean, this is complete bullshit. Analogy, in ye olden days with mechanical typewriters, if you used brand X, that had some patents on it, you could be an amateur or commercial author according to some writing guide "license to type", but if you used brands Y or Z, that had some other patents, with another variant on the "license to type", you had to pay a fee to the typewriter manufacturers cartel with the Y or Z patents if you wanted to sell your work? Or your publisher had to pay or..what??? Boooolll sheeet.

Re:just give up already

[Wildclaw]

I find the whole Theora thing amusing. You have a bunch of people trying to push for hardware support for a codec that pretty much no content producer (pirate or mainstream) uses. I can understand if you don't have the backing of mainstream producers, but if you can't even get a fraction of the pirates on your side, then you simply don't stand a chance.

Where is the Health Warning before you buy?

[Anonymous Coward]

Before you enter into a contract with the store to buy a device that is encumbered with H.264, where is the warning in 6in high BOLD text warning you that the patent trolls will be after you if you use the device for anything commercial?

Where is the warning so that people who shot the planes flying into the WTC that if they sold their footage the patent trolls would come a calling? Many of these were just tourists in the big Apple. They didn't go out that Tuesday morning with the aim of making money. Do you think that even if they knew the risks, they would have stopped shooting, put their camera away and said to the hijackers, I'm not taking any records of this because of some arcane law in the country you hate?

Nowhere. That is where.

Just like the EULA from microsoft etc, it is all snake oil (IMHO). The only different here is that the MPEG mafia have stronger snake oil than the rest. Buyer beware.

IMHO, post contract/sale restrictions that are put in force after you have legally purchased a device should be outlawed unless they are a Felony. AFAIK these cases are all civil suits and no jail time can be awarded.
This also should apply to the patent wars going on between the Mobile Phone companies. They buy stuff from a legal source. The license to use said stuff should be included in the price. There is no way any sane person would pay for a device and then have to pay umpteen other companies in separate contracts before they can legally use said device.
The US Legal System in this area should be consigned to history ASAP. There is no doubt that all this legal crap flying around is contributing to the downfall of the USA. But as all the legislators are Lawyers, they will never accept this in a million years.

h.264

[C_Kode]

If h.264 becomes THE web standard, then it should be striped of it's current royalty license and possibly be moved to the public domain for monopolistic reasons.

Now, I don't necessarily believe it should be moved to the public domain due to the fact that it has author and ownership, but having that much power of what is a standard is just wrong. Especially when the owner is trying to use it to dictate and harm competition the way they are.

Re:just give up already

[vadim_t]

Well, it has to start somewhere.

Producers won't release video in the format if nobody can play it. However, it's easy to add support for playing, especially in software, even if nobody ends up using it. If nobody tries to do anything, nothing will ever get done.

Re:how it makes sense (to them)

[devent]

But I am, as the buyer of a camera, not an "end-user". The end-users are the camera producer, who need the codec to encode their data. I'm the end-user of the camera I buy.

My understanding is that the camera producers are violating the license agreement because they are clearly using the codec in a commercial way and need a commercially license.

I, as the user of the camera, don't need or care about the codec used internal in the camera. I'm only concern about the codec if I need to watch or decode the video, but since I'm buying a video player software I'm not using their codec directly either. The end-user for the decoder is the producer of the player software, not me.

In conclusion, I'm never using their codec, neither for encoding nor for decoding. I'm using a camera which happens to use internal their codec but normally I have no knowledge about what codec is used.

The only way I should be concern with their license is if I'm writing my own library or application that uses their codec to encode or decode videos.